The rise of the rule of quasi-law in SA
The rule of law demands that those who administer the law must rarely, if ever, do so according to their own discretion, writes Martin van Staden
Quasi-law has become the norm in SA, with Parliament acting as a delegator of powers rather than the representative law-making body it is supposed to be. "Quasi-law" is described by US professors Bruce Frohnen and George Carey in their book, Constitutional Morality and the Rise of Quasi-Law, as measures that carry the force of law, but lack the character of law. These quasi-laws "create rights and duties like laws but lack essential legal attributes such as promulgation through prescribed means and provision of predictable rules rather than mere delegation of discretionary power". In a society that respects the rule of law — an imperative in section 1(c) of SA’s Constitution — laws are made by Parliament, administered by the executive, and adjudicated by the courts. The executive, crucially, cannot make law, but can enact regulations that enable the technical implementation of the substantive rules created by Parliament. Frohnen and Carey, however, write that all three branches of g...
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